My turn: When money is speech, speech isn't free

Posted: Monday, July 14, 2008

By RUSS MADDOX and JEFF MILCHEN

The Exxon verdict understandably overshadowed the U.S. Supreme Court's other end-of-term rulings among Alaskans, but one - Federal Election Commission v. Davis - deserves our attention, for it may influence our elections for decades to come.

Building atop the rotten foundation it laid three decades ago, the court struck down the "Millionaires' Amendment," a federal law that helped keep congressional elections competitive when candidates fund their own campaign with their personal fortune. Enacted in 2002, the law could have applied to 30 or more races this year.

The court's ruling repeatedly references its 1976 Buckley v. Valeo decision, which wrote between the lines of the First Amendment passage, "Congress shall make no law ... abridging the freedom of speech," to declare spending money to influence elections is constitutionally protected free speech.

Since then, the justices have struck down numerous laws designed to limit the power of money over election outcomes.

What's stunning about the court's opinion in Davis, however, is the disputed Millionaires' Amendment made no attempt to limit spending. To the contrary, it merely enabled candidates competing against a free-spending millionaire or billionaire to raise more money. By the court's own reasoning, this simply enabled more "speech."

The law allowed House candidates whose opponents personally spent more than $350,000 to accept up to three times the current $2,300 per-donor limit (only until their spending equaled the self-funding candidate's). Thresholds for U.S. Senate races varied based on state population.

Justice Alito, writing for the (5-4) majority, said, "Different candidates have different strengths. Some are wealthy. Others have wealthy supporters who are willing to make large contributions. Some are celebrities." The trouble is, those advantages generally accrue to the same individuals, not "different candidates."

Alito absurdly argued that leveling the playing field actually impeded voters' ability to make informed choices, then added, "The argument that a candidate's speech may be restricted in order to level electoral opportunity has ominous implications."

What restriction of speech? The amendment's sole impact was to help prevent the candidate with the loudest amplification from drowning out all other voices.

This is not a Republican-Democrat conflict. The plaintiff against the FEC was Jack Davis, a Democrat who twice spent his own millions in losing bids for a U.S. House seat in New York. The 28 candidates spending enough to trigger the amendment this year were split between the two dominant political parties.

The Justices' ruling may affect just a few dozen congressional races this year, but the overall trend is more disturbing. Viewed in conjunction with the 2006 decision to strike down Vermont's limits on campaign contributions in Randall v. Sorrell, it seems the court steadily is diminishing the chance of any citizen winning a seat in Congress without huge sums of money. The justices are accelerating the trend toward Congress becoming a rarefied club populated by elites distinctly unrepresentative of average citizens.

Not only will the Davis ruling impede citizens from learning the views of some worthy candidates, its language ominously suggests the court may overturn long-standing limits on corporate and union campaign spending. Further, it could undermine Alaskans' best opportunity for democratizing elections - public campaign financing - just prior to next month's vote on Clean Elections (Ballot Measure 3).

When the court majority declares easing barriers to competitive elections an unconstitutional "burden" on wealthy candidates, it leaves little space for hope. With the existing majority likely to dominate the court for a decade or more, reformers must confront a hard truth: The Supreme Court is a barrier to democratic elections and will be for many years.

Approving the Alaska Clean Election Initiative is a crucial step, but we also need to think nationally and aim below the beltway - away from legislative solutions subject to the court's approval and toward building bottom-up support to overrule the court's insistence that money is free speech.

Ultimately, we need a constitutional Amendment to declare investing cash in candidates is a privilege, subject to democratic controls to prevent the buying both of elected offices and political influence - not free speech as intended by our Bill of Rights.

 Russ Maddox directs Communities for Democracy in Alaska. He lives in Seward. Jeff Milchen is the founder of ReclaimDemocracy.org, a national network of democracy advocates, of which CODA is a state chapter. He lives in Missoula, Mont.